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PAGEL v. UNITED STATES

December 19, 1997

KAREN PAGEL AND PAUL PAGEL, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: INFANTE

 I. INTRODUCTION

 Defendant United States of America moves, pursuant to Fed. R. Civ. P. 56, for summary judgment, and, in the alternative, for summary adjudication on Plaintiffs' First Amended Complaint. Defendant's motion for summary judgment is based on the claim that the Court lacks subject matter jurisdiction because Plaintiffs failed to exhaust their administrative remedies under the Federal Tort Claims Act. Defendant's alternative motion for summary adjudication, which is directed to Plaintiff Karen Pagel's personal injury claims, is also based on the exhaustion doctrine. The Court has reviewed the parties' written submissions, including their supplemental memoranda of points and authorities, and considered the oral argument presented at the hearing. For the reasons given below, Defendant's motion for summary judgment and alternative motion for summary adjudication are denied.

 I. BACKGROUND

 This case arises out of Plaintiff Karen Pagel's trip-and-fall accident on the sidewalk outside of the United States Post Office located at 1175 Branham Lane in San Jose, California ("Robertsville Post Office"), on September 27, 1994. Ms. Pagel claims that her accident was caused by the "uneven surface" of the sidewalk. See Declaration of Yonkel Goldstein in Support of Defendant's Motion for Summary Judgment ("Goldstein Decl."), Exh. 1. Ms. Pagel allegedly suffered injuries to her left hand and arm, as well as her shoulder and neck. Goldstein Decl., Exh. 7. The most serious injury claimed is the Reflex Sympathetic Dystrophy which allegedly developed in the upper portion of her left arm. According to Ms. Pagel, the condition has effectively rendered her left arm useless. Plaintiff Paul Pagel, Ms. Pagel's husband, sues for loss of consortium. Goldstein Decl., Exh. 4.

 Plaintiffs retained attorney Philip Tobin to assist them in presenting their personal injury claim to the Postal Service. Mr. Tobin wrote a letter to the Postal Service in 1995 indicating that Ms. Pagel intended to present a personal injury claim. In response, Joe Rallo, a Customer Services Analyst for the Postal Service, wrote a letter on July 11, 1995 to Mr. Tobin acknowledging receipt of his letter and enclosing blank personal injury claim forms. See Declaration of Charles F. Hawkins in Opposition to Motion for Summary Judgment ("Hawkins Decl."), Exh. 1. In the July 11, 1995 letter, Mr. Rallo stated:

 
To process a claim for personal injury, a written report from the attending physician describing the injury sustained, nature and extent of injury, nature and extent of the treatment, the degree of permanent disability, if any, the prognosis and the period of hospitalization or disability.
 
Itemized medical and hospital bills must be submitted and should cover only treatment or medications needed as a result of the injuries sustained in the accident.
 
Failure to provide this information will delay the processing of your client's claim. Our claim number is NV95-001. Please utilize this number in future references.

 Hawkins Decl., Exh. 1 (emphasis in original). On November 20, 1995, Ms. Pagel presented her claim on the official Standard Form 95. Goldstein Decl., Exh. 1. Ms. Pagel's claim related the following facts regarding the subject accident:

 
While leaving the Robertsville Post Office at 1175 Branham Lane, San Jose, CA, I tripped on the uneven surface of the walkway heading to the parking lot. I fell forward; my left hand was outstretched in an attempt to break my fall and protect my face. My right hand was against my face to protect my face against the concrete. Both knees were scraped and bruised.

 Goldstein Decl., Exh. 1. She identified two witnesses to the incident in her November 20, 1995 claim. Goldstein Decl., Exh. 1. Ms. Pagel also attached her Kaiser medical records from September 27, 1994 through July 28, 1995 to the claim. Goldstein Decl., Exh. 1.

 On or about December 20, 1995, Mr. Tobin received a letter from Marlene Yacap, a Paralegal Specialist in the Postal Service law department, indicating that Ms. Pagel's November 20, 1995 claim was inadequate because "[a] sum certain demand was not made." Hawkins Decl., Exh. 2.1 Ms. Yacap told Mr. Tobin that the Postal Service could not consider Ms. Pagel's claim at all until "you request a sum certain amount. " Hawkins Decl., Exh. 2. In addition, Ms. Yacap advised:

 
In support of your client's claim for personal injury, you should submit a written report from the attending physician showing the nature and extent of injury, the nature and extent of treatment and dates thereof, the dates and results of any x-rays taken, any preexisting condition which might have a bearing on the injuries alleged herein, the degree of partial or permanent disability, if any, the diagnosis, the prognosis, and the period of hospitalization or incapacitation. Itemized bills for all hospital and medical expenses must be provided.

 Hawkins Decl., Exh. 2 (emphasis in original.).

 Mr. Tobin filed an amended claim on Ms. Pagel's behalf on April 2, 1996. *fn2" Goldstein Decl., Exh. 2. The amended claim was nearly identical to the original November 20, 1995 claim, except that it claimed precisely $ 1,009,833.35 in damages. Goldstein Decl., Exh. 2. Ms. Pagel also provided the Postal Service with additional medical records and billing records with the April 2, 1996 amended claim. Goldstein Decl., Exh. 2 and 3. Finally, Ms. Pagel attached a copy of a narrative report prepared by orthopedic surgeon Dr. John Fortune dated March 1, 1996. Hawkins Decl., Exh. 3; Goldstein Decl., Exh. 7.

 Dr. Fortune's March 1, 1996 report summarized the treatment Ms. Pagel received at Kaiser since September 27, 1994 and the progress made in her recovery. Goldstein Decl., Exh. 7. According to the report, Ms. Pagel had made some progress but was still undergoing treatment for injuries to her left hand and arm. Goldstein Decl., Exh. 7. Dr. Fortune concluded that surgery was not indicated although Ms. Pagel "may have a permanent residual functional deficits in her left hand and left upper extremity." Goldstein Decl., Exh. 7. Finally, Dr. Fortune noted that he could not "specifically quantify those deficits at this point" because Ms. Pagel was still receiving therapy. Goldstein Decl., Exh. 7.

 In April 1996, Mr. Tobin associated Charles Hawkins as co-counsel in this matter. Hawkins Decl., Exh. 6. On June 18, 1996, Mr. Hawkins filed another amended personal injury claim on behalf of Ms. Pagel, as well as a loss of consortium claim on behalf of Mr. Pagel. Goldstein Decl., Exhs. 3 and 4; Hawkins Decl., Exh. 5. Ms. Pagel's June 18, 1996 amended claim related the following facts regarding the subject accident:

 
Claimant tripped on a raised portion of the sidewalk which leads from the Robertsville Post Office at 1175 Branham Lane, San Jose, CA to the parking lot adjacent to said post office. Claimant fell forward with her left hand put stretched in an attempt to break her fall and protect her face and as a consequence suffered a severe injury to her left arm which has been diagnosed as Reflex Sympathetic Dystrophy and which has disabled that extremity. She also sustained injuries to both knees and various scrapes and bruises. The walk way in question was repaired by the post office shortly after this incident and the location of claimant's fall can therefore be fixed with particularity.

 Goldstein Decl., Exh. 3. In addition, Ms. Pagel raised her damages claim from $ 1,009,833.35 to $ 1,500,000.00. Goldstein Decl., Exh. 3.

 Mr. Pagel's June 18, 1996 loss of consortium claim contained the following factual allegations:

 
Claimant is married to co-claimant Karen Pagel who was seriously injured in the fall on the above date. As a result of his wife's injuries, claimant Paul Pagel has suffered a loss of consortium by reason of his wife's permanent inability to engage in the customary duties, activities, endeavors, past times and recreational activities in which she was normally engaged prior to her injury.
 
By reason of Mrs. Pagel's injuries, claimant himself has assumed many of the duties and functions formerly performed by his wife and has ceased to receive the enjoyment and benefit of many of the social, personal and recreational activities in which he and his wife were normally engaged.

 Goldstein Decl., Exh. 4. Mr. Pagel's loss of consortium claim demanded $ 500,000.00 in damages. Goldstein Decl., Exh. 4.3

 On July 18, 1996, Mr. Hawkins wrote a letter to Ms. Yacap to provide additional information regarding Ms. Pagel's physical condition and to send further billing records from Kaiser. *fn4" Hawkins Decl., Exh. 6. Mr. Hawkins also provided Ms. Yacap with another copy of Dr. Fortune's March 1, 1996 narrative medical report as an enclosure to his letter. Finally, Mr. Hawkins expressed his opinion that the Pagels' claims could not be settled through the administrative claims process and urged Ms. Yacap to quickly deny their claims so that a lawsuit could be filed. Hawkins Decl., Exh. 6. Mr. Hawkins wrote:

 
This is an extremely serious case and while I mean no disrespect, experience has taught me that there is very little chance that the Federal Government will respond to this claim with a settlement offer which would be acceptable to Mrs. Pagel and her husband. This is a case which needs full discovery and you should see for yourself the extent of Mrs. Pagel's disabling injury. I therefore think it would be appropriate for you to promptly deny the claim so that I can file suit and we can begin moving this matter towards resolution by settlement or trial.

 Hawkins Decl., Exh. 6.

 The Postal Service did not respond to Mr. Hawkins' request for a summary denial of the Pagels' claims. Instead, Ms. Yacap wrote to Mr. Tobin on August 22, 1996 to request additional ...


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